Fegley and Salway - [2015] FamCA 1117

FAMILY COURT OF AUSTRALIA

FEGLEY & SALWAY

[2015] FamCA 1117

FAMILY LAW – CONTRAVENTION – Where the father asserts the mother has breached orders of the court – Where the mother denies that she has contravened the orders on three occasions – Where the father has failed to establish a prima facie case on the first charge – Where the father has established the second charge that the mother contravened an order – Where, in respect to the second charge, the mother wishes to assert a reasonable excuse for contravening an order – Where the father does not press the third charge

Evidence Act 1995 (Cth)

Family Law Act 1975 (Cth)

Briginshaw v Briginshaw (1938) 60 CLR 336
Dickens & Dickens & Anor (No 2) [2015] FamCA 256
Jones v Dunkel (1959) 101 CLR 298

APPLICANT:

Mr Fegley

RESPONDENT:

Ms Salway

INDEPENDENT CHILDREN’S LAWYER:

Ms S Mahony

FILE NUMBER:

SYC

6044

2013

DATE DELIVERED:

14 December 2015

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Watts J

HEARING DATE:

18 May 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Breeze

SOLICITOR FOR THE APPLICANT:

H A Miedzinski Lawyers

SOLICITOR FOR THE RESPONDENT:

Crawford Ryan Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mahony Family Lawyers

Orders

I find that the father has established a prima facie case that on 5 February 2015 the mother contravened order 4(b) made 12 June 2014.
The mother is to file and serve any affidavit setting out the evidence upon which she wishes to rely in respect of reasonable excuse on or before 10 February 2016.
The matter is adjourned to 2.45pm on 19 February 2016.
The father’s Application for Contravention filed 12 February 2015 is otherwise dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Fegley & Salway has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 6044 of 2013

Mr Fegley

Applicant

And

Ms Salway

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

There are three children of the marriage, B born … 1999, C born … 2002 and D born … 2008. Mr Fegley (“the father”) claims that Ms Salway (“the mother”) has breached orders by physically disciplining C on 3 February 2015 and by not making D available to spend time with the father on 5 February 2015. The father had also claimed the mother had breached an order by allowing B to read a letter from the father’s solicitors to the mother’s solicitors.
The mother in submissions did not raise any issue in relation to her not knowing about the orders of 2 April 2014 and 12 June 2014.
The mother denied that she had contravened the orders as alleged in the first two charges. The father did not proceed with a third charge.

THE FIRST CHARGE

By way of an Application for Contravention filed 12 February 2015, the father asserts that on 3 February 2015 at approximately 8.00am at Suburb E, the mother administered physical discipline to the parties’ child, C, in contravention of order 5(a) made 2 April 2014 which is in the following terms:
5. Each of the parties is restrained by injunction from:
(a)administering any form of physical discipline or chastisement to any of the children.
The evidence that the mother had contravened order 5(a) of the orders of 2 April 2014 on 3 February 2015 is contained in the father’s affidavit and in CCTV footage tendered by the father.
The father’s evidence in his affidavit in relation to the what happened on 3 February 2015 is as follows:
17.At approximately 2:00pm on 3 February 2015 I received a phone call from my daughter, [B]. During the phone call [B] said to me words to the effect, “I lost [C] and [D]. They were behind me when I left school and when I was walking towards the bus. But I got on the bus and they didn’t. I don’t know where they are”.
18.Immediately after terminating the call with [B], I tried to phone [C] on his mobile. [C] did not answer. I suspected at the time and learned later that [C] did not have his mobile phone on him because it had earlier been taken from him by [Ms Salway].
19.A short while later I received a telephone call from my partner, [Ms F]. During the telephone conversation, [Ms F] said to me words to the effect “C and D have just turned up at my work”.
20.I promptly caught a train to [Suburb G] Railway Station and collected [C] and [D].
21.I next sent a text message to [Ms Salway]. Annexed hereto and marked with the letter “D” is a copy of the text message I sent together with other text messages I received and sent to [Ms Salway] on 3 and 5 February 2015.
22.Almost as soon as I walked in the door to my home with [C] and [D], [C] and I had a conversation during which we each said words to the following effect:
[C]:“I’m not going back”
Me:“Why?”
[C]:“I asked mum about football training tonight. She told me I wasn’t going. Then she said I’m going to have a problem with my phone. Then she pushed my head down onto my bed and took my phone off me. She grabbed my neck and pulled me up and then she grabbed my throat and dragged me down the stairs. She took me outside to her car and pushed my head into the roof. She drove us to [Suburb E] train station and then pulled me out of the car. She dragged me to the train station and pushed me onto the train. She was yelling and screaming at me. I didn’t know what to do. I’m sick of it. I’m not going back”.
23.I was able to reassure [C]. I said to him words to the effect “I’ll take you to training and then we’ll figure out what to do next”. I could see by the smile and relieved look on his face that he felt reassured by the words I was saying and he was happy that I was taking him to training.
24.At approximately 7:00pm on 3 February 2015 I received a telephone call from [Suburb G] Police. The office said to me words to the effect “We’ve received a phone call from [Ms Salway]. She’s concerned about the boys. She’s asked us to check on them”. I said in reply words to the effect “[C]’s going to bed soon but I’m happy for you to come by and check on him and [D]”.
25.At approximately 10:00pm on 3 February 2015 two police officers arrived at my home. They asked to speak with [C]. [C] was asleep. We tried to rouse [C] from his sleep but ultimately one of the officers said to me words to the effect “Just bring him by the police station tomorrow so we can talk to him”.
26.[C] and [D] spent the night with me at home.
27.I drove [C] and [D] to school on Wednesday morning, 4 February 2015. When we arrived, C said to me words to the effect “I’m going to talk to [Mr H]. Dad, will you wait with me?” I replied by saying “Yes mate”. [Mr H] is the principal of the school.
28.After a short while, [Mr H] came out to see C and then they both entered his office. I waited outside.
29.[Mr H] returned about 30 minutes later and asked me to join him, [C] and his secretary, who was taking notes, in his office. I could see that [C] was crying. His face was flushed and he was shaking. [Mr H] said to me words to the effect “[Mr Fegley], due to the serious nature of the situation and what [C] has been telling me I am going to seek advice on who I need to report this to. I don’t think [C] is any [sic] shape to be at school today. I want you to take him home. I’ll phone [Ms Salway] and tell her [C] is leaving with you”.
30.After leaving [Suburb G] School with [C], he and I attended [Suburb G] Police Station. I said to one of the officers words to the effect “I’m really concerned for the safety of my boys”.
31.Constable Hart of [Suburb G] Police decided to recall a patrol car to come and interview [C]. The officers arrived and explained the process to [C] and I. Then they took [C] into an interview room while I waited outside. I understand Constable Hart supervised the interview.
32.Around forty minutes later the offices returned and said to me words to the effect “[Mr Fegley], can we have your permission to take photos of the scratches and marks on the back of [C’s] neck”. I saw that [C’s] interview was being recorded and I granted permission for [C] to be photographed and then signed a document to the same effect.
33.After the interview, the officers said to me words to the effect “We will conduct interviews with [Ms Salway] and [B] and [Ms Salway] could be charged with common assault. At the very least, we’ll look at taking out an AVO against [Ms Salway] for [C’s] protection”.
The father did not lead any evidence whether by way of the tendering of business records or the calling of a police officer or the school principal, in relation to any statements made by C to the police or to the school principal. A Jones & Dunkel[1] submission was made in respect of that lack of evidence. It seemed an agreed fact that no subpoena had in fact been issued to the police for their file.
[1] Jones v Dunkel (1959) 101 CLR 298
The father was cross examined. He was a less than impressive witness. The unsatisfactory nature of the father’s evidence, as discussed below, leads me to place little weight upon the evidence contained in his affidavit in relation to statements made to him by C surrounding the events on 3 February 2015 and his assertions as to what police officers and the school principal said to him.
The father indicated that it was possible that on the morning of 3 February 2015, the following text exchange took place between himself and C:
[C]: Good morning
Father: Good morning
[C]: Mum said I’m not going to training
Father: Catch the train to my place after school
The father however denied that if he had been involved in such an exchange of text messages with C, it would not have encouraged C to be defiant of his mother on 3 February 2015.
The father’s clear attitude was that C was entitled to choose to go to football training and his mother was not entitled to say that he could not, notwithstanding the mother having clear parental responsibility to make that decision, given that C was at that time with her pursuant to existing orders (s 65DAE of the Family Law Act 1975 (Cth) (“the Act”). The father resorted to saying that it was his belief that there was a specific order requiring C to go to football training. The father, when confronted with the orders, had to concede that there was no such order. The father was disingenuous in not accepting a proposition that he had an interest in C playing rugby league because of his interest in that sport, in circumstances where the father then conceded that he had been a member of a first grade team. Nor did I accept the father’s denial that he was motivated to ensure C attended a football tournament in I Town later in the mother.
The father was also disingenuous in not immediately agreeing that the boys had attended a football tournament in I Town in February 2015 partly during a time when they were supposed to be back with their mother. He apparently drew a distinction between rugby league and Oztag. The father’s evidence relating to the boys’ attendance at this tournament was unconvincing. The father agreed he took C and D to I Town for the tournament partly during the period of time when they should have been with their mother. Whatever problems might have existed with C, the father did not return D to the mother during the time he was in I Town, when he was actually due to commence time with the mother. The highest the father’s evidence can be taken in relation to him informing the mother that he intended to retain C and D outside the existing orders (for the purposes of the football tournament) was him indicating that it was his belief that he had told the mother via text message that he was doing it (it was clear he did not seek her consent). It did the father no credit when he asserted that he gave the mother the right to have D dropped back to her by either the mother travelling to I Town to pick him up or having another parent at the tournament return D to her. The father also agreed that he did not involve the mother in the process of seeking the school’s exemption for C and D to be away from school for the purposes of going to I Town for the football tournament.
The mother’s solicitor, during final submissions, referred to Johnston J’s decision of Dickens & Dickens & Anor (No 2) [2015] FamCA 256 where his Honour considered the admission of hearsay evidence in the case. The mother’s solicitor particularly relied on Johnston J’s finding that hearsay evidence “cannot be tested in the usual manner by cross-examination” and that in that case “little weight can be afforded to… hearsay material”. Johnston J found that statements by the child in Dickens had to be regarded with great caution. Here I adopt a very cautious approach to the father’s evidence about what others said to him.
The father tendered in evidence CCTV footage produced by Transport Sydney Trains. I was taken to two pieces of footage.
The first piece of footage is identified as Hrstvl – CO39 commencing at 7:18:30. This footage shows C and his mother coming up an escalator into the tiled foyer of what I infer is a shopping mall area as part of an entrance to Suburb E Station. The mother appears to be urging C to move a little faster and moves in front of him. There is nothing in that footage that would indicate that there was any physical discipline applied to C at the top of the escalator.
The second footage shows C and his mother moving through the tiled area of what I infer is an entrance to Suburb E Railway Station. When the mother and C enter the foyer, C is walking slightly behind his mother. Counsel for the father submits that as they are walking the mother’s arm or hand comes in contact with either C’s back or his backpack. Counsel for the father went as far as to say that the video footage demonstrates the point of impact and shows that when the mother’s hand appears to come in contact with C’s back, his face changes significantly and he opens his mouth. The Independent Children's Lawyer’s submits that the footage does appear to show the mother connecting with the back of C. I do not agree however that that forced the child to move any quicker. In fact their normal walking gait did not change. C appears to say something to his mother; they then hold hands. It is not apparent from the footage that the mother connected with C with any force whatsoever. There is nothing in that footage that would found an assertion that the mother at this point in time used physical discipline against C (the footage is identified as Hrstvl – CO51 commencing at 7:18:30 and concluding at 7:18:47).
There is no corroboration contained in the CCTV footage of the father’s allegation (he says as reported to him by C) that the mother dragged C to the train station and pushed him onto the train. It was conceded (somewhat reluctantly by counsel for the father) that there is no indication from the footage that the mother was on the platform at all when C got on the train.
There is no objective evidence to corroborate the father’s assertion (he says as reported by C) that the mother pushed C’s head into the roof of her car.
The father in this case bears an onus of proof of establishing a prima facie case according to the civil standard with due regard to matters mentioned in Briginshaw v Briginshaw (1938) 60 CLR 336 (and now reflected s 140(2)(b) and (c) Evidence Act1995 (Cth)).
The father asks the court to find a prima facie case against the mother on the basis of the father’s evidence in respect of hearsay statements made by C, and the uncorroborated statements by the father in relation to what he says police officers and the school principal said to him following the incident, in circumstances where no other evidence (which would have been available) was called by the father in his case. Notwithstanding the evidence contained in [32] of father’s affidavit, he himself gives no evidence that he observed scratches and marks on the back of C’s neck.
Considering all the evidence, I do not accept that the father has established a prima facie case and accordingly I dismiss the first charge.

THE SECOND CHARGE

The father further asserts that on 5 February 2015 at 3.00pm at Suburb G School, the mother breached order 4(b) made 12 June 2014 which is in the following terms:
4. The children [B], [C] and [D] are to spend time with the father as follows:
....
(b)In the off week during the school term from immediately after school on Thursday until the commencement of school on Friday morning.
It is not controversial that 5 February 2015 was a Thursday on which D was scheduled to be with his father. It is also an agreed fact that D did not go to school on this day.
At [35] of his affidavit, the father refers to a text message that he received from the mother at 3.56pm which is in the following terms:
[D] is unwell. He didn’t attend school. He will be staying with me.
The father replied:
Get him to call me on my mobile. I would like to speak to him.
The father gave evidence that D did not ring him on that night. The father denied he had seen a medical certificate that was alleged to have been sent from the mother to the father’s solicitors in relation to D’s absence from school on this day.
The father agreed that he did not attend D’s school to collect him at 3.30pm on this day. This is not unusual as the parties’ arrangements were that the children would travel from the school by bus or train to various locations to be picked up.
Counsel for the father submitted that the father was entitled in this hearing to explore whether or not D was really sick enough to prevent him from going to school this day.
The father has established that this day the mother did not make the child available to spend time with the father. That is a breach of the order. The mother has asserted she has a reasonable excuse. She should file her evidence in relation to reasonable excuse on or before 10 February 2016.

THE THIRD CHARGE

The father had also asserted that by allowing B to read a letter from the father’s solicitors to the mother’s solicitors on 5 February 2015, the mother had breached order 5(d) of the orders made 2 April 2014. The father however conceded that that order was not in existence on the date of the alleged breach given that it had been discharged by a subsequent order of the court on 12 June 2014. That third count was not ultimately pressed by the father.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 14 December 2015

Associate:

Date: 14.12.2015